Govt's proposed FCC in the doldrums

Five petitions land in high courts seeking to make draft public

ISLAMABAD:

The federal government has started deliberations regarding the sustainability of the proposed Federal Constitutional Court (FCC).

Sources revealed to The Express Tribune that for the past three days, the top brass of the government has been considering abandoning the idea of establishing the FCC due to various reasons.

They said one section within the government is suggesting that the establishment of the FCC may cause further instability in the country as majority of lawyers are strongly opposing it.

Although the government has managed to gain the support of the Pakistan Bar Council (PBC) for the establishment of the FCC, there is a realisation within the government that a majority of lawyers will react strongly. Even Independent Group known as pro-government may lose the annual election of the Supreme Court Bar Association (SCBA), which is being held in the last week of October.

Similarly, five petitions have been filed in various high courts seeking to make public the draft of the constitutional amendment. Former senator Mustafa Nawaz Khokhar has submitted a petition to the Islamabad High Court, which is scheduled for hearing today (Thursday).

There is concern that the superior judiciary may not accept it.

It has been learnt that the JUI-F is also suggesting the government to establish a constitutional bench of the five senior-most judges to hear the matters instead of creating the FCC.

"We should avoid establishing a new apex court for just 200 cases. The real issue is case management, which can be addressed by increasing the number of Supreme Court judges," a lawmaker from the JUI-F stated.

The sources maintained that now the government is also considering as whether notification regarding the appointment of Justice Syed Mansoor Ali as Chief Justice of Pakistan (CJP) should be issued this week.

One cabinet member stated that if this notification is issued, things will normalise.

There is also consideration that if the idea of establishing the FCC is abandoned, a constitutional amendment should still be made to change the process for appointing judges to the superior courts and to include a provision for a panel of judges for the appointment of the chief justice of Pakistan.

Former additional attorney general Tariq Mahmood Khokhar stated that while nothing can justify the events of May 9, those events, in turn, seem to justify everything, including the proposed constitutional amendments that go against the salient features of the Constitution.

"Time was propitious for collaborative efforts among many to enact radical constitutional changes. However, the outcome was an outrageous attempt to undermine the rule of law, democracy, independence of the judiciary, civilian supremacy, and the integrity of the Supreme Court."

Khokhar stated that a unified effort by independent and impartial judicial commentators mobilised both the legal community and the public.

The draft amendments had not originated from either houses of parliament, indicating a clear directive from external forces.

"In the event, the executive failed to secure a two-thirds majority. The first and most significant casualty was the proposed Federal Constitutional Court. It seems the Supreme Court has survived an existential threat," Khokhar added.

Chaudhry Faisal Hussain, who is representing PTI founder Imran Khan, stated that the idea of the FCC is fundamentally flawed and driven by political motivations.

"The government's instability stems from a lack of political legitimacy due to rigged elections, and its vulnerability has been repeatedly exposed by the opposition, even while its leaders remain incarcerated," he said.

Hussain expressed doubt that such a "weak government" would be able to withstand and manage the strong backlash from both the legal community and within the judiciary.

Referring to the open letters addressed to apex court judges by leading constitutional lawyers—both seasoned and young—along with former law clerks, and the outright rejection by legal practitioners, Hussain remarked that even if the amendments were passed through dubious means, the FCC stands little chance of succeeding.

"The resistance to the amendments from common lawyers, intelligentsia, and civil society has left the idea extremely vulnerable," he said.

It should be noted that there are several stakeholders in this government and the final decision will be made after consulting all of them.

However, a section within the PML-N is still interested in establishing the FCC, with the intention of having it headed by current CJP Qazi Faez Isa.

It has been learnt that some senior PPP leaders are expressing concern over party Chairman Bilawal Bhutto Zardari's leading role in establishing the FCC. They believe this role may affect the party's relationship with the superior judiciary.

Since 2009, it is perhaps the first time the superior courts are not hostile toward the PPP.